ILLINOIS POLLUTION CONTROL BOARD

July 23, 2009

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

GARY SIMMONS, individually, and

LAWRENCE COUNTY DISPOSAL CENTRE,

INC., an Illinois corporation,

Respondents.

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PCB 06-159

(Enforcement - Land)

PHILLIP McQUILLAN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF

COMPLAINANT; and

GARY SIMMONS APPEARED

PRO SE

INTERIM OPINION AND ORDER OF THE BOARD (by S.D. Lin):

On April 17, 2006, the People of the State of Illinois (People or complainant) filed a six-

count complaint against Gary Simmons and Lawrence County Disposal Centre, Inc. (Disposal

Centre) (collectively, respondents) for alleged violations of the Environmental Protection Act

(Act) (415 ILCS 5/1

et seq.

(2008))

1

and the Board’s non-hazardous waste landfill regulations

for operation, closure and post-closure care at the Lawrence County Disposal Facility (Landfill,

a/k/a “Dowty Landfill”), located near Sumner, Lawrence County, Illinois.

Respondents failed to file an answer to the complaint. Mr. Simmons appeared at the

October 29, 2008 hearing, but failed to contest the allegations and failed to submit a closing

brief. The Disposal Centre failed to appear through an attorney at hearing, or any other time in

this proceeding, and failed to submit a closing brief.

Based on the record in this proceeding, the Board finds the respondents in violation as

alleged in the amended complaint and assesses the civil penalties requested by the People. The

Board assesses the requested civil penalties of $10,000 against Lawrence County Disposal

Centre, Inc., and $1,000 against Gary Simmons individually. The Board will also order the

Disposal Centre to pay the time use value of $118,421.90 against the Disposal Centre to recoup

the economic benefit earned through non-compliance. The Board further orders the respondents

to pay attorney fees in the amount to be determined after the complainant files an affidavit of

attorney fees. The People must perform the necessary penalty calculations as well as any

attorney fee affidavit and submit these documents to the Board and respondents within 35 days

1 The pleadings in this case refer to both the 2004 and 2006 versions of the Illinois Complied

Statutes. As there is no difference in the relevant sections from the 2004 to the 2006 and to the

2008 compilation, the Board will consistently reference the 2008 edition.

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of the order. The respondents may file any response to these documents within 21 days of

receipt.

Upon receipt of the affidavit, the Board will enter a final order in this proceeding

directing the payment of the assessed penalty and attorney fees.

PROCEDURAL HISTORY

On April 17, 2006, the People filed a six-count complaint against the respondents for

alleged violations of the Act, Board regulations, and permit terms at the Landfill. The complaint

alleges that respondents violated five provisions of the Act, namely, Sections 9(a), 21(d)(1) and

(d)(2), and 22.17(a) and (b) (415 ILCS 5/9(a), 21 (d)( 1) and (d)(2), and 22.17(a) and (b) (2008)).

The complaint also alleges that the respondents violated 35 Ill. Adm. Code 745.201(b);

811.109(a); 811.111(c)(1)(A), (c)(2), and (c)(5); 811.310(c); 811.312(c); 811.315(e)(1)(G);

811.319(a), (a)(1), (a)(2), and (a)(3); 811 .320(d)(1); 813.501; 813.502(a). The People allege

that respondents violated these provisions by (1) violating various post-closure care

requirements; (2) violating site security and maintenance requirements; (3) violating closure

permit conditions; (4) violating groundwater monitoring requirements; (5) violating gas

monitoring requirements; and (6) causing, threatening, or allowing air pollution.

On October 29, 2008, a hearing was held in Lawrenceville before Hearing Officer Carol

Webb. On December 12 2008, the complainant filed a brief in this proceeding. Neither of the

respondents has submitted a brief.

FACTS

Gary Simmons and the Lawrence County Disposal Centre, Inc. have been the owners and

operators of the Lawrence County Disposal facility (Landfill) at all times relevant to this

proceeding. Comp. at 1-2 (¶3-4). The landfill ceased operations pursuant to an order entered in

People of the State of Illinois v. Gary Simmons and Lawrence County Disposal Centre, Inc.

,

No.

93 CH 12 (Lawrence County Circuit Court, January 12, 1994).

Id

. at 2 (¶7). That case involved

operational violations at the landfill.

Id

.

The IEPA certified the closure of the Landfill on May 17, 1999, and issued Supplemental

Permit No. 1997-033-LFM to the respondents, regarding the post-closure care of the facility.

Comp. at 2 (¶8). The permit noted that the thirty year post-closure care period began October 1,

1998.

Id

.

Ambraw Valley Solid Waste Management Agency (Am-Val) inspected the conditions of

the Landfill on at least 14 occasions between February 19, 2001 and September 8, 2005 to

determine compliance with permit obligations and the post-closure care program. (Am-Val

made these inspections pursuant to a delegation agreement with the IEPA as authorized by

Section 4(r) of the Act, 415 ILCS 5/4(r) (2008).) Comp. at 3-4 (¶9-15). During the inspections,

Am-Val observed numerous alleged violations at the landfill.

Id

. These included permit

violations, failure to conduct maintenance, and failure to properly control and monitor to monitor

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groundwater contamination and landfill gas emissions.

Id

. By its second inspection on May 09,

2001, Am-Val had documented alleged violations of all five provisions of the Act which are

alleged in the complaint. People’s Exhs. 1.1 and 1.2. Although Am-Val notified the respondents

of the violations on several occasions, the respondents failed to respond to most of these

notifications (Tr. at 15-36), and did not perform any remedial action at the landfill. Tr. at 39.

The IEPA ultimately collected on the financial assurance bond for post-closure care at the

landfill, and contracted with Environmental Restoration, LLC to conduct post-closure care at the

landfill. Tr. at 56. The IEPA paid Environmental Restoration, LLC $91,927.26 for remedial

work performed from January 16, 2007 to February 25, 2007, and $14,348.70 for remedial work

performed from February 25, 2007 to March 26, 2007. Tr. at 60-61; People’s Exh. 20. The

IEPA also incurred costs of $5,277.56 in Fiscal Year 2006 and $6,868.38 in Fiscal Year 2007.

Tr. at 60-61; People’s Exh. 20. The total of these amounts, without interest, is $118,421.90. Tr.

at 60-61; People’s Exh. 20.

Hearing Testimony

and Exhibits

Three witnesses testified at the hearing. Twenty exhibits were admitted on behalf of the

complainant and one exhibit was admitted on behalf of the respondents. The relevant testimony

is summarized below.

Bob Gher, an inspection officer at Am-Val, testified regarding the inspections, the

violations found, the reports he made in the course of business after conducting the inspections,

and the violation notice letters he sent to Simmons. Tr. at 6-48. Mr. Gher testified that he had

sent each inspection report to Mr. Simmons, which included the alleged statutory and regulatory

violations found during each inspection, but that Mr. Simmons did not respond to the reports.

Tr. at 15-36;

see

Comp. Br. at 2;

see

People’s Exhs. 1.1-5.3.

Mr. Gehr stated that he sent a violation notice letter to Mr. Simmons on February, 19,

2001, and subsequent violation notice letters on May 14, 2001 and July 13, 2001. Tr. at 36-38;

see

People’s Exhs. 9-11. He indicated that Mr. Simmons was sent a compliance commitment

rejection letter on September 18, 2001. Tr. at 39;

see

People’s Exh. 14. Mr. Gehr testified that

Simmons did respond to a later violation notice letter, dated November 23, 2002, through a letter

by Simmons’ attorney, Stephen Hedinger. Tr. at 39;

see

People’s Exhs. 12-13. But, Mr.

Simmons ultimately performed no remedial work at the landfill. Tr. at 39

Mr. Gher testified about the effects of the violations. Tr. at 40-42. Specifically, he

testified that the violations created risks of groundwater contamination, air pollution, litter, and

unauthorized access to the landfill.

Id.

Mr. Gher testified further about the remedial work that Environmental Restoration LLC

performed at the landfill. Tr. at 42-44. He stated the remedial work did not resolve all of the

problems, and that violations still existed at the time of the hearing, including those caused by

ongoing erosion, permit violations, and failure to mow and conduct maintenance.

Id

. at 44, 47-

48.

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Christian Leibman has been the manager of the solid waste unit in the IEPA’s land permit

section since 1999, and has worked in the permit section for 23 years. Mr. Leibman testified

regarding the closure certification of the landfill. Tr. at 48-52. Mr. Leibman stated that failure to

maintain the final cover system and monitor for groundwater contamination and gas migration

during the post-closure care period were violations of the post-closure permit.

Id

. at 51.

Gary Simmons testified as an adverse witness. Simmons acknowledged that he was the

sole stockholder of Lawrence County Disposal Center Inc., which held title in the landfill, and

that he had purchased the landfill from Mr. Lauren Dowty in 1988.

Id

. at 53-54. Simmons

confirmed that he had received copies of each violation notice letter, and agreed to the contents

of the inspection reports.

Id

. at 55. He also stated that he had no reason to doubt the accuracy of

the invoice from Environmental Restoration LLC., which identified the remediation work that

took place and the amount of money charged.

Id

. at 55-56. Further, he stated that to his

knowledge, none of the allegations in the complaint was false.

Id

. at 57.

Mr. Simmons made a statement on his own behalf, apologizing for the violations.

Id

. at

61-64;

see

Resp. Exh. 1. He stated that while he regretted that violations occurred after closure

due to lack of funding, he had closed the landfill in compliance, and while it was in operation,

he had improved the landfill’s condition. Tr. at 64;

see

Resp. Exh. 1. He stated that the prior

condition of the landfill “was an opportunity, and I was a little naïve with the rules changing as

rapidly as they did, especially during that time that I was quickly on a treadmill I could not get

off of. ” Tr. at 64.

Mr. Simmons also testified that he is no longer the owner of the landfill.

Id

. at 65. He

stated that Lawrence County Disposal Centre, Inc. lost its status of good corporate standing

sometime around 2006, because he discontinued paying the yearly fee.

Id

. at 65-66. He testified

that he sold the landfill to Eastern Environmental, which later sold it to Waste Management, the

current operator.

Id

. at 65.

The Disposal Centre did not appear through an attorney at any time in this proceeding or

at hearing. Under Illinois law, Mr. Simmons as an individual, even though sole shareholder in

the Disposal Centre, cannot represent the corporation.

See

35 Ill. Adm. Code 101.400 (b), citing

Section 1 of the Corporation Practice of Law Prohibition Act, 705 ILCS 220/1 (2008) and

Section 1 of the Attorney Act, 705 ILCS 205/1 (2008).

STATUTORY AND REGULATORY BACKGROUND

The regulations and permit conditions which the respondents allegedly violated are

voluminous, so they are not included in this section. A short summary of the statutes follows.

Sections 21(d)(1) and (2) of the Act provide in pertinent part that no person shall:

(d)

Conduct any waste-storage, waste-treatment, or waste disposal operation:

1)

Without a permit granted by the Agency or in violation of any conditions

imposed by such permit . . .

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2)

In violation of any regulations or standards adopted by the Board under

this Act. 415 ILCS 5/21 (d)(1) and (2) (2008).

Sections 22.17(a) and (b) of the Act provide in pertinent part that:

(a)

The owner and operator of a sanitary landfill site . . . shall monitor gas,

water, and settling at the completed site for a period of 15 years after the

site is completed or closed, or such longer period as may be required by

Board or federal regulation.

***

(b)

The owner and operator of a sanitary landfill site . . . shall take whatever

remedial action is necessary to abate any gas, water or settling problems

which appear during such period of time specified in subsection (a).

415 ILCS 5/22.17(a) and (b) (2008).

Section 33(c) of the Act provides in its entirety that:

(c)

In making its orders and determinations, the Board shall take into

consideration all the facts and circumstances bearing upon the

reasonableness of the emissions, discharges or deposits involved

including, but not limited to:

(i)

the character and degree of injury to, or interference with the

protection of the health, general welfare and physical property of

the people;

(ii)

the social and economic value of the pollution source;

(iii)

the suitability or unsuitability of the pollution source to the area in

which it is located, including the question of priority of location in

the area involved;

(iv)

the technical practicability and economic reasonableness of

reducing or eliminating the emissions, discharges or deposits

resulting from such pollution source; and

(v)

any subsequent compliance. 415 ILCS 5/33(c) (2008).

Section 42(h) of the Act provides that

In determining the appropriate penalty to be imposed . . . the Board is

authorized to consider any matters of record in mitigation or aggravation of

penalty, including but not limited to the following factors:

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(1)

the duration and gravity of the violation;

(2)

the presence or absence of due diligence on the part of the

respondent in attempting to comply with requirements of this Act

and regulations thereunder or to secure relief therefrom as

provided by this Act;

(3)

any economic benefits accrued by the respondent because of delay

in compliance with requirements, in which case the economic

benefits shall be determined by the lowest cost alternative for

achieving compliance;

(4)

the amount of monetary penalty which will serve to deter further

violations by the respondent and to otherwise aid in enhancing

voluntary compliance with this Act by the respondent and other

persons similarly subject to the Act;

(5)

the number, proximity in time, and gravity of previously

adjudicated violations of the Act by the respondent;

(6)

whether the respondent voluntarily self-disclosed, in accordance

with subsection (i) of this Section, the non-compliance to the

Agency; and

(7)

whether the respondent has agreed to undertake a “supplemental

environmental project,” which means an environmentally

beneficial project that a respondent agrees to undertake in

settlement of an enforcement action brought under this Act, but

which the respondent is not otherwise legally required to perform.

In determining the appropriate civil penalty to be imposed under

subsection (a) or paragraph (1), (2), (3), or (5) of subsection (b) of this Section,

the Board shall ensure, in all cases, that the penalty is at least as great as the

economic benefits, if any accrued by the respondent as a result of the violation,

unless the Board finds that imposition of such penalty would result in an arbitrary

or unreasonable financial hardship. However, such penalty may be offset in

whole or in part pursuant to a supplemental environmental project agreed to by

the complainant and respondent. 415 ILCS 5/42(h) (2008).

The alleged regulatory violations are many. These are not set forth here in the interests

of conserving space and paper. But, the gist of the rules alleged to have been violated is

summarized in the discussion of each of the complaint’s counts below.

THE COMPLAINT’S ALLEGATIONS

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The following discussion summarizes each of the six counts in the complaint.

Count I: Post-Closure Care Violations

Count I of the complaint alleges that the respondents violated Sections 22.17(a) and (b)

of the Act, (415 ILCS 5/22.17(a) and (b) (2008)) and Section 811.312(c) of the Board’s landfill

regulations (35 Ill. Adm. Code 811.312(c)) by:

a) failing to monitor gas, water and settling at the landfill site,

b) failing to take remedial action necessary to abate gas, water, and settling problems,

and

c) failing to implement adequate measure to monitor and control the emission of landfill

gas. Comp. at 10.

Count II: Site Security and Maintenance Violations

Count II alleges that the respondents violated Sections 811.109(a) and (b) of the Board’s

landfill regulations (35 Ill. Adm. Code 811.109(a) and (b)), and Sections 811.111(c)(1)(A),

(c)(2), and (c)(5) of the Board’s landfill regulations (35 Ill. Adm. Code 811.111(c)(1)(A), (c)(2),

and (c)(5)) by:

a) failing to conduct quarterly inspections of all vegetated surfaces after closure,

b) failing to fill rills, gullies and crevices six inches or deeper than six inches which have

been identified by Am Val, and

c) failing to re-vegetate those areas with failed or eroded vegetation in excess of 100

square feet. Comp. at 13.

The complaint also alleges that the respondents violated Section 21(d)(2) of the Act (415 ILCS

5/21 (d)(2) (2008)) by conducting a waste-storage or a waste-disposal operation upon the site in

violation of the Board’s landfill regulations. Comp. at 13.

Count III: Permit Violations

Count III alleges that the respondents violated Section 21(d)(1) of the Act (415 ILCS

5/21 (d)(1) (2008)) by violating various provisions of the Landfill’s permit, as follows:

a) failing to submit reports required by Permit No. 1997-033-LF and Board regulations,

failing to prevent unauthorized entry to the landfill by means of a fence or gate or a

natural barrier as required by Condition I. 5. of the permit,

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b) failing to post a sign at the entrance to the landfill that provides notices as required by

35 Ill. Adm. Code 811.109(b) and Condition I. 6. of the permit,

c) failing to submit to the IEPA by May 1

st

of each year an annual certification signed

by the operator or a duly authorized agent as required by Condition III. 1.,

d) failing to submit to the IEPA by May 1

st

of each year an annual report for each

calendar year pursuant to 35 Ill. Adm. Code 813.504 as required by Condition III. 2.,

e) failing to submit to the Illinois IEPA on a quarterly basis all groundwater monitoring

data as required by Condition III. 3. and in accordance with the schedule in Special

Condition XI. 11. of the water monitoring program of the permit pursuant to 35 Ill.

Adm. Code 813.502,

f) failing to keep operating records required by 35 Ill. Adm. Code 812 and 813 available

at the site engineer’s office at Lamac Engineering Co., in Mt. Carmel, Illinois as

required by Condition IV. 4.,

g) failing to submit to the IEPA the results from gas monitoring for each year, ending on

December 31, in the annual report required by 35 Ill. Adm. Code 813.501, as

specified in Special Condition III. 2., as required by Condition V. 7. and in

accordance with Special Condition III. 2.,

h) failing to file an application to renew the permit, which expired on June 30, 2001,

failing to revise the current cost estimates for post-closure care as required by

Condition IX. 3.,

i) failing to determine background groundwater quality as required by Condition XI. 9.,

failing to collect groundwater samples on a quarterly basis each year as required by

Condition XI. 11.,

j) failing to submit to the Illinois IEPA the groundwater monitoring data as required by

Condition XI. 11.,

k) failing to annually prepare an evaluation of the groundwater flow direction and the

hydraulic gradients at the facility using the groundwater surface elevations and by

failing to report this information to the IEPA by July 15 of each year as required by

Condition XI., and

l) conducting a waste-storage or waste-disposal operation upon the site in violation of

the permit. Comp. at 18-21.

Count IV: Groundwater Monitoring Violations

Count IV alleges that the respondents violated Section 21(d)(1) of the Act (415 ILCS

5/21 (d)(1) (2008)), Section 811.320(d)(1) of the Board’s landfill regulations (35 Ill. Adm. Code

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811.320(d)(1)), Section 813.502(a) of the Board’s landfill regulations (35 Ill. Adm. Code

813.502(a)), Section 22.17(a) of the Act (415 ILCS 5/22.17(a) (2008)), and Section 21(d)(1) of

the Act (415 ILCS 5/21 (d)(1) (2008)) by:

a) failing to determine background concentrations for those constituent parameters

identified in Sections 811.315(e)(1)(G) and 811.319(a)(2) and (a)(3) to establish

background groundwater quality, failing to perform quarterly groundwater

monitoring during any time during calendar years 1999, 2000, 2001, 2002, 2003,

2004 and 2005,

b) failing to submit all groundwater monitoring data pursuant to Section 811.319(a) of

the Board’s landfill regulations and pursuant to the permit,

c) failing to monitor groundwater at the facility, failing to submit to the Illinois IEPA on

a quarterly basis all groundwater monitoring data as required by Condition III. 3. and

in accordance with the schedule in Special Condition XI. 11. of the water monitoring

program of the permit pursuant to 35 Ill. Adm. Code 813.502,

d) failing to determine background groundwater quality as required by Condition XI. 9.,

failing to submit to the IEPA the groundwater monitoring data as required by

Condition XI. 9., failing to collect groundwater samples on a quarterly basis each year

as required by Condition XI. 11.,

e) failing to submit to the IEPA the groundwater monitoring data as required by

Condition XI.11.,

f) failing to annually prepare an evaluation of the groundwater flow direction and the

hydraulic gradients at the facility using the groundwater surface elevations, and

g) failing to report this information to the IEPA by July 15 of each year as required by

Condition XI. 17. Comp. at 27-28.

Count V: Gas Monitoring Violations

Count V alleges that the respondents violated Section 21(d)(2) of the Act (415 ILCS 5/21

(d)(2) (2008)), Section 811.312(c) of the Board’s landfill regulations (35 Ill. Adm. Code

811.312(c)), Section 811.310(c) of the Board’s landfill regulations (35 Ill. Adm. Code

811.310(c)), Section 21(d)(1) of the Act (415 ILCS 5/21(d)(1) (2008), and Section 22.17(a) of

the Act (415 ILCS 5/22.17(a) (2008)) by:

a) causing or allowing the emission of landfill gas directly into the environment, failing

to check gas monitoring devices and obtain ambient air samples on a monthly basis,

b) failing to submit to the IEPA the results from gas monitoring for each years, ending

on December 31, in the annual report required by 35 Ill. Adm. Code 813.501, as

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specified in Special Condition III. 2., as required by Condition V. 7, and in

accordance with Special Condition III. 2., and

c) failing to monitor gas at the facility. Comp. at 34-35.

Count VI: Air Pollution Violations

Count VI alleges that the respondents violated Section 811.312(c) of the Board’s landfill

regulations (35 Ill. Adm. Code 811.312(c)), Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2)

(2008)), and Section 9(a) of the Act (415 ILCS 5/9(a) (2008)) by

a) causing or allowing the emission of landfill gas into the environment so as to cause or

tend to cause air pollution air pollution,

b) conducting a waste-storage or waste-disposal operation upon the site in violation of

Board regulations, and

c) causing or allowing the emission of landfill gas into the environment so as to cause

or tend to cause air pollution in Illinois or so as to violate regulations or standards

adopted by the Board. Comp. 36-37.

FINDINGS OF VIOLATION

At no time have the respondents mounted any sort of defense to the complaint. The

respondents did not file an answer to the complaint within 60 days of the date the Board accepted

this matter for hearing. The Board deems admitted the allegations in each count of the

complaint.

See

35 Ill. Adm. Code 103.204(d); People v. Simmons

, PCB 06-159 (April 20,

2006), slip. op. at 1. Moreover, the Disposal Centre failed to appear at hearing through an

attorney, resulting in a default under the Board’s procedural rules, since complainant proved its

prima facie

case at hearing.

See

35 Ill. Adm. Code 101.608. Therefore, the Board finds that the

respondents are liable for the violations below.

REMEDIES, INCLUDING PENALTY

The Board considers the factors set forth in Sections 33(c) and 42(h) of the Act in

determining the appropriate remedy and civil penalty, if any. In making its orders, the Board is

required to consider any matters of record concerning the reasonableness of the alleged pollution,

including those factors identified in Section 33(c). The Board is also required by the Act to consider

any matters of record concerning the mitigation or aggravation of any penalty, including those

matters specified in Section 42(h).

See,

People v. Bernice Kershaw and Darwin Kale Kershaw d/b/a

Kershaw Mobil Home Park, PCB 92-164 (April 20, 1994).

In this case, the People have requested a multi-faceted remedy. The People request that

Respondents be ordered to perform post-closure maintenance and monitoring of the facility; and to

renew the closure permit. Comp. Br. at 46-47. The People have also requested

imposition of civil

penalties against each respondent, and imposition of attorney fees.

Id.

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The Board will discuss the factors from Sections 33(c) and 42(h) of the Act (415 ILCS

5/33(c) and 42(h) (2008) which the Board must consider when determining the appropriate

remedy and penalty, if any. Finally, the Board will assess the appropriate remedy and penalty

and explain the Board’s reasons for them.

Section 33(c) Factors

The Character and Degree of Injury to, or Interference With, the Protection of the Health,

General Welfare and Physical Property of the People

The violations that occurred after the landfill closed presented a grave interference with

the protection of the health and general welfare of the people. Gehr’s testimony identified that

the violations created several risks, including groundwater contamination, air pollution, litter,

unauthorized access to the landfill, and erosion. The Board finds that this factor weighs against

the respondents, because the risks to public health and welfare demonstrate the unreasonableness

of the pollution.

The Social and Economic Value of the Pollution Source

Properly-run, closed, monitored, and cared for landfills have economic and social value.

But here, the Landfill was in violation of operating standards as well as closure and post-closure

standards. At the end of its useful life, the Landfill had little social and economic value, and

presented an environmental hazard which IEPA was forced to remediate. The Board finds that

this factor weighs against the respondents.

The Suitability or Unsuitability of the Pollution Source to the Area in Which it is Located,

Including the Question of Priority of Location in the Area Involved

The suitability of the site for a landfill is not at issue here. When it was operating the

pollution source was suitable for the area in which it was located. This factor weighs neither for

nor against the respondents.

The Technical Practicability and Economic Reasonableness of Reducing or Eliminating the

Emissions, Discharges or Deposits Resulting from Such Pollution Source

Properly closing a landfill and meeting the applicable standards after doing so is

technically practicable and economically reasonable. The Board considered the technical

practicability and economic reasonableness of landfill compliance standards when it adopted the

Board rules concerning closure and post-closure care of landfills. The Board finds that this

factor weighs against the respondents.

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Any Subsequent Compliance

The respondents did not comply subsequent to receipt of numerous notices of violation.

Although the Landfill was eventually closed through the actions of IEPA and its contractor, no

credit is due to respondents. The Board finds that this factor weighs against the respondents.

Section 42(h) Factors

Duration and Gravity of the Violation

The respondents committed ongoing violations for several years, some of which were

still ongoing at the time of the hearing. The underlying purpose of the Board’s landfill rules is to

require the landfill owner to shoulder the burden of properly caring for the landfill both during

and after the end of its useful life, to avoid having the burden of environmental damage and

remediation care fall upon the taxpayers of the state of Illinois. Here, respondents did not

perform closure, leaving the state to step in to do so. The Board finds that this factor aggravates

the violation, and warrants a substantial penalty.

Due Diligence

The respondents failed to respond to letters from Am-Val which indicated violations on

several occasions. There is no evidence of any due diligence in the record. The Board finds that

this factor aggravates the violation, and warrants a substantial penalty.

Economic Benefits Accrued

The People’s closing brief asserts that respondents have avoided certain costs,

particularly those associated with sampling, monitoring, and maintenance. The People contend

that

From at least the beginning of the year 2001 through the time at which the Illinois

hired Environmental Restoration, LLC, of St. Louis, Missouri to perform the

necessary remediation work in 2007, Respondents did not incur any costs or

expend any money in complying with the permit, the Act, or the Board

regulations. The Respondents saved approximately $118,421.90 which are the

costs incurred by the Illinois EPA and paid out of the financial assurance bond

proceeds which were collected by the Illinois EPA. Complainant submits that

Respondents’ savings amount to the time uses value of the money over the

approximate six year time period. The interest value of this money should be

assessed against Respondents as a penalty. The interest should be computed by

using the maximum rate allowable under Section 1003(a) of the Illinois Income

Tax Act, 35 ILCS 5/1003. This Board should find that Respondents have saved

money as a result of their noncompliance, and these savings should be considered

by the Board in reaching its final order and opinion. Comp. Br. at 45.

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Respondents have not disputed the People’s assertions. The Board therefore finds that, as

a minimum, the respondents have accrued economic benefits in the amount “of the time uses

value of $118, 421.90 over a six year period”.

Penalty Which Will Serve to Deter Further Violations

The respondents do not currently own or operate the landfill, and the record does not

indicate that they own or operate other similar sites. But the circumstances of this case do

indicate that deterrence is an important consideration. By failing to respond to Am-Val’s

violation notices and failing to remediate the landfill, the respondents opted to neglect their

closure and post-closure responsibilities and save costs in the short-run, rather than address the

problems promptly. Civil penalties should deter violations by the respondents and others who

are similarly subject to the Act by providing disincentives for the neglect of post-closure

responsibilities. The Board finds that this factor aggravates the penalty.

The Number, Proximity in Time, and Gravity of Previously Adjudicated Violations

The respondents had one previously adjudicated violation in 1993. The complainant

states that it is not submitting this as an aggravating factor. Accordingly, the Board finds that

this factor neither aggravates nor mitigates the violation.

Whether the Respondent Voluntarily Self-Disclosed the Non-Compliance

The respondents did not voluntarily self-disclose the non-compliance in this case. The

Board finds that this factor aggravates the violation.

Whether the Respondent Has Agreed to Undertake a Supplemental Environmental Project

in this Case

The respondents did not agree to undertake any supplemental environmental projects; the

record does not indicate that one was suggested. The Board finds that this factor neither

aggravates nor mitigates the violation.

Remedy Discussion

Remedy Order

The People request that the respondents be ordered to perform post-closure maintenance and

monitoring of the Landfill facility, and to renew the closure permit. The Board finds that these

measures are reasonable and necessary to assure that any changes in the Landfill’s condition are

timely discovered and remediated. The Board next turns to penalty considerations.

Statutory Maximum Penalty

The Board has stated that the statutory maximum penalty “is a natural or logical

benchmark from which to begin considering factors in aggravation and mitigation of the penalty

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14

amounts.” Gilmer, PCB 99-27, slip. op. at 8, citing IEPA v. Allen Barry, individually and d/b/a

Allen Barry Livestock, PCB 88-71 (May 10, 1990), slip. op. at 72. The basis for calculating the

maximum penalty is contained in Section 42(a) and (b) of the Act 415 ILCS 5/42(a) and (b)

(2002). Section 42(a) provides for a civil penalty not to exceed $50,000 for violating a provision

of the Act and an additional civil penalty not to exceed $10,000 for each day during which the

violation continues.

In this case, the respondents violated five provisions of the Act, all of which began by the

time of Am-Val’s second inspection on May 09, 2001. People’s Exhs. 1.1 and 1.2; Comp. Br. at

24-25. The respondents performed no remediation, and the closure and post-closure care

initiated by the IEPA did not begin until January 16, 2007 (People’s Exh. 20; Comp. Br. at 29).

Still, some of the violations were present at the landfill at the time of the October 29, 2008

hearing. Tr. at 44. By multiplying $50,000 by five statutory violations, a base penalty of

$250,000 is reached. By adding $10,000 for each day per each of the five violations over only a

five year period,

2

an additional civil penalty of $91,250,000.00 is reached. This makes the total

maximum penalty $91,500,000.

Complainant’s Requested Penalties

The People remind that the Board has broad discretionary powers to assess civil penalties

under the statutory authority vested by the Act. Southern Illinois Asphalt Company v. Pollution

Control Board, 60 Ill.2d 104, 326 N.E. 2d 406 (1975). Courts have traditionally upheld the

imposition of civil penalties where it will “aid in the enforcement of the Act,” but not where it is

shown to be merely “punitive.” Southern Illinois Asphalt Company, 326 N.E.2d at 412; see also,

City of Monmouth v. Pollution Control Board, 57 Ill. 2d 482, 313 N.E. 2d 161 (1974) (punitive

considerations for civil penalties are secondary).

In this case, the People’s brief does a particularly fine and concise job of summarizing the

history of penalty decisions before the Board and courts. The People assert that

In the last thirty years of enforcement under the Act, civil penalties assessed by

the Board or Illinois courts have fallen between two ends of a spectrum. On the

one end, little or no civil penalties have been deemed necessary because of

pertinent facts that weighed heavily upon the nature of the violations or the extent

of the alleged pollution. Technical or paperwork violations, such as the failure to

obtain permits or submit reports, have frequently been afforded this treatment.

See,

Park Crematory, Inc. v. Pollution Control Board, 201 Ill. Dec. 931, 637

N.E.2d 520 (1st Dist. 1994); Trilla Steel Drum Corporation v. Pollution Control

Board, 180 Ill.App.3d 1010, 536 N.E.2d 788 (1st Dist. 1989). Similarly, the

inadvertence of the defendant, Southern Illinois Asphalt Company,

supra

, the

good faith efforts of a defendant to bring about compliance prior to the filing of a

complaint, Park Crematory, Inc.,

supra

; Bressler Ice Cream Company v. Pollution

Control Board, 21 Ill.App.3d 560, 315 N.E.2d 619 (1st Dist. 1974), and lack of

2

Using a five year period provides a conservative estimate, because the respondents violated

each provision of the act for more than five years.

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15

any economic benefit from noncompliance, Park Crematory, Inc.,

supra

, have

figured prominently in cases involving low or nominal civil penalties. Again,

amendments to Section 33 of the Act, 415 ILCS 5/33 (2006) and Section 42 of the

Act, 415 ILCS 5/42 (2006), all of which were subsequent to the aforementioned

cases and all of which increased the penalty amounts subsequent to the

aforementioned cases, make it clear that the Board has the power and authority to

assess a penalty in this matter.

On the other end of the spectrum, some enforcement actions brought under the

authority of the Act have resulted in substantial monetary penalties. In these cases,

circumstances showing the unreasonableness of the defendant’s conduct or its

lack of good faith, ESG Watts, Inc., v. Pollution Control Board, 282 Ill. App. 3d

43, 668 N.E.2d 1015 (4th Dist. 1996), the seriousness and lengthy duration

attributed to the violations, People v. John Prior and Industrial Salvage, Inc., PCB

No. 97-1 11 (November 20, 1997); People v. Panhandle Eastern Pipeline

Company, PCB No. 99-191 (November 15, 2001), the need for deterrence, People

v. Waste Hauling Landfill, Inc and Waste Hauling, Inc., PCB No. 95-91 (May 21,

1998), or the accrual of a significant economic benefit, Panhandle,

supra

, have

been important considerations in the penalty determination.

Of course, most litigated cases fall somewhere in the middle of the aforementioned

spectrum. The determination as the amount of the penalty is dependent on the

unique facts of each case, as no exact “formula” for arriving at a penalty exists,

People v. Bernice Kershaw and Darwin Dale Kershaw, PCB No. 92-1 64 (April

20, 1995); People v. ESG Watts, Inc., PCB No. 96-233 (February 5, 1998). Comp.

Br. at 37-39.

In making their penalty recommendation, the People suggest that as to

Gary Simmons, the People contend that this case should be ranked at the lower end of the

penalty spectrum. Comp. Br. at 40. The complainant requests imposition of a civil penalty of

$1,000 to be paid by Gary Simmons individually. As to the Disposal Centre, the People c

ontend

that this case should be ranked at the mid-range of the penalty spectrum.

Comp. Br. at 40. The

People seek a civil penalty of $10,000 to be paid by Lawrence County Disposal Centre, Inc.

Comp. Br. at 46, 47. Additionally, the complainant also seeks a penalty in the amount of

the time

use value of the money Respondent saved by non-compliance—the interest value on approximately

$118,421.90.

Interest is assessed from the date of payment by the IEPA through July 23, 2009 –

the date of this order.

The complainant requests that the present time use value of $118,421.90 be “computed

by using the maximum interest rate allowable under Section 1003(a) of the Illinois Income Tax

Act, 35 ILCS 5/1003.” Comp. Br. at 47. The Illinois Department of Revenue has provided that

“the rate of interest to be paid to taxpayers and to be charged to taxpayers is the underpayment

rate established under Section 6621 of the Internal Revenue Code.” 86 Ill. Adm. Code

700.210(a). This is “the sum of the Federal short-term rate plus 3 percentage points.” 86 Ill.

Adm. Code 700.210(b). The rate is re-calculated every six months.

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The Board’s Assessment of Penalties

The Act authorizes the Board to assess civil penalties amounting to several million

dollars against the respondent, because the landfill was in violation of multiple provisions of the

Act for several years. The violations unreasonably interfered with public health and welfare, and

the provisions applying to post-closure operation of a landfill are technically practicable and

economically reasonable. The Board notes that aggravating factors, specifically, the duration

and gravity of the violation, the absence of due diligence on behalf of the respondents, the

economic benefit to the respondents by not complying, and the need for deterrence, support an

imposition of a substantial penalty under Section 42(h).

After listing the factors to consider in determining whether a substantial penalty is

warranted, Section 42(h) provides that:

The Board shall ensure, in all cases, that the penalty is at least as great as the economic

benefits, if any, accrued by the respondent as a result of the violation, unless the Board

finds that imposition of such penalty would result in any arbitrary or unreasonable

hardship. However, such civil penalty may be off-set in whole or in part pursuant to a

supplement environmental project agreed to by the complainant and the respondent. 415

ILCS 5/42(h) (2008).

Accordingly, the Board agrees with the People that the Disposal Centre must at least pay the

time use value of $118,421.90. The Board assesses this amount against the Disposal Centre to

recoup the economic benefit earned through non-compliance. However, the record does not

specify the details of how the People would suggest interest be calculated, presumably using the

documents contained in Peoples Exhibit 20.

3

The Board will order the People to perform the

calculations, and to submit its explanation for them to the Board and respondents within 35 days

of the order. The respondents may respond to the calculated figure within 21 days of receipt.

Because a substantial penalty is warranted under Section 42(h), the Board finds that the

total penalty should be greater than the interest value of the remedial expenses. Accordingly, the

Board acknowledges the complainant’s requests for a $1,000 civil penalty against Gary Simmons

individually and a $10,000 civil penalty against the Lawrence County Disposal Centre, Inc., and

assesses these amounts in addition to the time uses value of the remedial expenses.

Penalty Summary

The Board assesses civil penalties of $1,000 against Gary Simmons individually and

$10,000 against Lawrence County Disposal Centre, Inc., to penalize the respondents for

committing ongoing violations at the landfill, failing to exercise due diligence in curing the

3

Specifically, People’s Exh. 20 contains two invoices and two other billing records indicating

charges from Environmental Restoration, LLC. The invoice for $91,927.26 is dated March 08,

2007 and the invoice for $14,348.70 is dated March 21, 2007. The other two, which are internal

billing records listing charges billed by each individual, do not contain a clear date. The

People’s brief is unclear on when they would suggest interest charges begin to accrue.

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17

problems, and causing the IEPA to take necessary actions to remediate the site. Accordingly, the

total amounts for the civil penalties in this case are $10,000 against Lawrence County Disposal

Centre, Inc., and $1,000 against Gary Simmons individually. The Board assesses the time use

value of $118,421.90 against the Disposal Centre to recoup the economic benefit earned through

non-compliance. The People must perform the necessary calculations and submit them to the

Board and respondents within 35 days of the order. The respondents may respond to the

calculated figure within 21 days of receipt.

ATTORNEY FEES

Section 42(f) of the Act allows the Board to assess attorney’s fees where the violator has

committed “willful, knowing or repeated violation of the Act.” 415 ILCS 5/42(f) (2008). The

complainant asks for reasonable fees and costs and asks for leave to file an affidavit as to costs.

Comp. Br. at 47. The Board finds that awarding of attorney fees is appropriate, finding that

respondents violations are “willful, knowing or repeated” within the meaning of Section 42(f) of

the Act. The Board directs the complainant to file an affidavit itemizing its attorney fees within

35 days of the order. The respondents may respond to the affidavit of costs within 21 days of

receipt.

CONCLUSION

The Board finds that Gary Simmons and Lawrence County Disposal Centre, Inc. violated

numerous provisions of the Act, Board regulations, and permit terms before and after the

Landfill closed. The failure to properly close, care for, and monitor the Landfill was

unreasonable because the violations risked public health and welfare, and the closure and post-

closure procedures under the Act are technically feasibility and economically reasonable.

Further, the ongoing nature of the violations, the absence of due diligence on behalf of the

respondents, the economic benefits accrued by the respondents as a result of non-compliance,

and the need for deterrence support the imposition of a substantial penalty.

The Board assesses the requested civil penalties of $10,000 against Lawrence County

Disposal Centre, Inc., and $1,000 against Gary Simmons individually. The Board will also order

the Disposal Centre to pay the time use value of $118,421.90 against the Disposal Centre to

recoup the economic benefit earned through non-compliance. The Board further orders the

respondents to pay attorney fees in the amount to be determined after the complainant files an

affidavit of attorney fees. Upon receipt of the affidavit, the Board will enter a final order in this

proceeding directing the payment of the assessed penalty and attorney fees.

This interim opinion constitutes the Board’s interim findings of fact and conclusions of

law.

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